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May 27, 2006

Strong media coverage of Enron sentencing issues

As I predicted, the Enron conviction stories are now starting to turn to sentencing issues. And today both the Houston Chronicle and the AP have terrific stories about some key issues to be raised by the sentencing of Ken Lay and Jeff Skilling. Both stories rightly focus on the extraordinary importance of loss calculations under the federal sentencing guidelines, and I especially liked how Mary Flood starts her great Chronicle piece discussing the federal sentence process:

On their way to sentencing, Ken Lay and Jeff Skilling will next be put under a microscope by a federal probation officer as their attorneys try to convince the judge that they didn't cause shareholders to lose a penny — or at least not many pennies.

Sentencing in the federal courthouse has its own nearly indecipherable procedures. They are so complicated that experienced lawyers often disagree about what will likely happen. They do agree a probation officer will be assigned to look at everything from the men's mental health and family history to financial assets and losses they caused.

UPDATE: I now see that Peter Henning at the White Collar Crime Prof Blog has this interesting post entitled "The Parameters of CEO Sentencing." Here are some of Peter's many good insights:

The government's memorandum for [WorldCom CEO Bernie] Ebbers sentencing sets out what I expect will be the likely approach of the Enron Task Force regarding a non-Guidelines analysis based on comparable sentences given in other cases to avoid sentencing "disparity," one of the goals of the Guidelines. Here, the 25-year sentence imposed on Ebbers and the 15 years that the 80-year old [Adelphia CEO John] Rigas received could be argued by the government as the appropriate parameters of a "reasonable" sentence for Lay and Skilling, and prosecutors would be expected to seek a sentence at the higher end of that range.

Orange County money manager James P. Lewis Jr. was sentenced Friday to 30 years in prison for swindling 1,600 investors of $156 million in a Ponzi scheme so calculated and long-running that the judge called it a "crime against humanity." Lewis slumped back in his seat as U.S. District Judge Cormac Carney pronounced the maximum sentence, rejecting pleas by Lewis' lawyer that it would be "a death sentence for a 60-year-old." Lewis turns 60 next month.

Carney calculated that 19 1/2 years in prison would be the most under nonbinding federal sentencing guidelines. But he said those rules "never contemplated this kind of case." For nearly 20 years, the judge noted, Lewis solicited retirement funds from investors who now face the prospect of humiliation and poverty in their senior years. "Obviously, Mr. Lewis has robbed you of security, peace of mind and the pursuit of happiness," Carney said. He added that when Congress set 30 years as the maximum sentence for mail fraud, "I just can't believe they could have conceived of a worse case than this."

The judge's decision was handed down after a four-hour, 20-minute hearing in a packed Santa Ana courtroom filled with weeping testimony from victims and Lewis' family, as well as angry outbursts from some investors. Asked by the judge to address the court, Lewis delivered a rambling speech that began with apologies to his victims, saying he was "full of sorrow, shame and deep remorse."... As the sentence was read, one of Lewis' daughters screamed and burst into tears while many of the 60 other spectators applauded....

Defense attorney Scott M. Schlegel said he would appeal the sentence, saying it was cruel and unusual punishment for a man of Lewis' age.... The judge praised Lewis for giving up his right to a trial, which he said could have overwhelmed the already devastated investors. Lewis pleaded guilty in October to one count of mail fraud and one count of money laundering.

I am pretty confident that, even in the Ninth Circuit, this long sentence will not be declared unconstitutionally cruel and unusual. A closer question, however, might be whether this upward variance from the guideline range to the statutory maximum might be deemed unreasonable. The fact the defendant pleaded guilty, but still got a max sentence that was more than 10 years longer than the guidelines recommended, might provide a basis for claiming unreasonableness.

May 26, 2006

The full lyrics to Short People Got No Prison

Some commentors have been a bit surly in response to my suggestion for finding humor in brewing short sentence brouhaha (background here and here). However, I am so pleased to see Milbarge rise to the occasion with another terrific song parody. The full lyrics here demand a full review, but here's the great start:

Short people got no prisonShort people got no prisonShort people got no prisonTo serve.

The little judgeWith his little brainWants to spare short peopleBig House pain.They get little slapsOn their little wrists,And the big D.A.Is a little pissed.

Victims' rights and the Enron sentencings

I continue to enjoy issue spotting in anticipation for the future sentencings of Ken Lay and Jeff Skilling. I have now moved from first-cut questions and guideline calculations to pondering the role of victims in the Enron sentencing process.

As criminal law gurus should know, a few years ago Congress enacted the Crime Victims' Rights Act (CVRA), which guarantees crime victims eight different rights, including the "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771(a)(4). Notably, as detailed here, the Ninth Circuit recently declared that this provision gives crime victims a right (which they can independently enforce) to "allocute at sentencing" in addition to submitting a written impact statement. District Judge Paul Cassell, as detailed here, has likewise ruled in a thoughtful recent opinion that, under the CVRA, "victims of all crimes have a right to personally address the court."

In light of the CVRA, I wonder how many persons can claim to be victims of Lay and Skilling, and how many of those persons may demand to speak at their sentencings. Does every holder of Enron stock and former Enron employee have a statutory basis for claiming a right to speak in person at the Lay and Skilling sentencings? Notably, the CVRA has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" their rights, "the court shall fashion a reasonable procedure to give effect to [the CVRA] that does not unduly complicate or prolong the proceedings."

Against this backdrop, I could imagine some victims being a voice for a shorter prison sentence: e.g., some victims might urge Judge Lake to limit the prison terms for Lay and Skilling so they can earn money after their release to pay restitution to more victims. Recall that Congress has told sentencing courts section 3553(a)(7) to consider "the need to provide restitution to any victims of the offense." Consider here the possible current balance sheet of Michael Milken — who, intriguingly, was a BusinessWeek cover boy just before the Enron scandals, was just recently on the cover of Worth magazine, and has this impressive website.

Short fun to start a long weekend

A judge's decision to sentence a 5-foot-1 man to probation instead of prison for sexually assaulting a child has angered crime victim advocates who say the punishment sends the wrong message. But supporters of short people say it's about time someone recognizes the unique challenges they face.

Rather than try to turn this case into a teaching moment, I thought I would invite everyone to make it a funny moment. Through crime and punishment are no laughing matter, sometimes we all need to lighten up. So, I'll get us started on possible headlines and jokes about this case, while encouraging others to use the comments to chime in:

Possible song title for the case: "Short people got no prison"

Possible movie title for the case: "Honey, I shrunk the sentence" or "Get Shorty (on probation)"

Possible starts for jokes: "Did you hear Lay and Skilling are looking into getting their shins removed?"

Enron guideline calculations (and a fascinating post-Booker question)

In this list of first-cut Enron sentencing questions, I speculated that the (advisory) federal guideline sentences for Ken Lay and Jeff Skilling could be life or at least 360 to life. Confirming my instinct is guideline guru Frank Bowman, who already has prepared a snazzy PowerPoint presentation, entitled "Sentencing Ken Lay & Jeffrey Skilling" that you can access here thanks to Peter Lattman at the WSJ Law Blog. Frank concludes that both Lay and Skilling face guideline recommendations of life sentences based on his calculations (which, notably, do not even include enhancements for obstruction of justice).

In thinking (and talking to others) about the Enron guideline calculations, one especially fascinating post-Booker question has my mind racing: Which version of the guidelines should apply to Lay and Skilling?

I am pretty sure the fraud guidelines were amended significantly to increase sentences in white-collar cases in November 2001 and again in November 2003. Before Booker came along, it was settled law that ex post facto concerns generally required district judges to apply the version of the guidelines in place at the time of the crime. (This old-world reality itself raises some issues, since arguably some offense conduct took place in late 2001.)

After Booker, there is a reasonable argument that ex post facto concerns no longer limit the application of the current guidelines even if they provide for harsher sentences. (In fact, I believe Judge Easterbrook has some dicta in a post-Booker opinion to this effect.) After all, the guidelines are no longer binding law, just intricate advice.

Shouldn't Judge Sim Lake at sentencing consider the most up-to-date advice from the Commission? If the guidelines themselves are so darn reasonable and incorporate all the 3553(a) factors (as a few district judges and many circuit judges like to stress), why should Judge Lake rely on old, out-of-date and less reasonable advice from 2000 or 2001 when sentencing Lay and Skilling? In short, many of the justifications for attentiveness to the guidelines in the post-Booker world seem to call for applying the latest version of the guidelines now that they are only advisory.

So, dear readers, should the 2000 guidelines or the 2001 guidelines or the 2005 guidelines apply to Lay and Skilling? And what version of the guidelines will prosecutors to argue for (given than we can be sure the defense will argue for the most lenient 2000 guidelines to apply)?

Strong Booker work from the Sixth Circuit

Though perhaps I am biased by geographical proximity, today's opinion in US v. Buchanan, No. 05-5544 (6th Cir. May 26, 2006) (available here), has me again thinking that the Sixth Circuit is doing some of the best post-Booker work of any of the circuits. In Buchanan, the Court (per curiam) thoughtfully explains why a guideline sentence was reasonable with an attentiveness to the parsimony command of 3553(a). Here's a choice snippet:

In our view, the [district] court demonstrated a model approach to sentencing in the aftermath of Booker. The judge properly calculated the guidelines range, then carefully considered the appropriateness of that range as applied to the defendant before him in light of the concerns encompassed by the statutory factors. Balancing competing interests, goals and individual characteristics, the court found the recommended guidelines range to be appropriate and chose to sentence Buchanan at the bottom of that range to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in the § 3553(a)(2) factors. 18 U.S.C. § 3553(a).

In challenging that conclusion, Buchanan principally argues that the district court "improperly interpreted the holding of Booker to state that a sentence within the Guideline range was presumptively reasonable" and "treated the Guidelines as presumptively reasonable." To the extent Buchanan means to say that trial judges may not give an irrebuttable presumption of reasonableness to a guidelines sentence, he is right. Such an approach cannot be squared with Booker. But that, quite clearly, is not what the district court did. To the extent Buchanan means to argue that courts of appeals may not give a properly calculated guidelines sentence a "rebuttable presumption of reasonableness," he is wrong, as a recent decision of the court confirms.

Adding to the Buchanan fun is a concurrence by (Ohio State's own) Judge Jeff Sutton. Though here I am certainly biased by knowing Judge Sutton, I still feel confident saying that his discussion of post-Booker sentencing and reasonableness review and the presumption of reasonableness is perhaps the strongest post-Booker work I have seen from a circuit judge in a long time. Every Booker fan must read Judge Sutton's concurrence, and the taste below just provides a small slice of its many virtues:

One can exercise independent judgment while still respecting the Sentencing Commission's judgment about the appropriate sentence for certain types of crime. If the trial court appreciates that the guidelines are advisory, fairly considers the § 3553(a) factors in announcing its sentence and adheres to the other procedural requirements of a reasonable sentence, that should suffice. At some point, there must be a limit to the numbers of ways (and times) the courts of appeals apply reasonableness review that calls for trial judges to conduct new sentencing hearings.

Booker after all empowered district courts, not appellate courts. And sentencing courts, not the Sentencing Commission, retain the ultimate authority within reason to apply the § 3553(a) factors to each criminal defendant. A trial judge can talk about the § 3553(a) factors until he is blue in the face without giving independent judgment to the sentence at hand. And he can reference them briefly and still exercise that judgment. T he end is not process in itself but the substantive goal that trial judges exercise independent and deliberative judgment about each sentence — making these sentences more than an algebraic equation and less than a Rorschak test. While it made considerable sense in the immediate aftermath of Booker for our court to ensure that trial judges were aware of the discretion Booker gave them in this area and to establish some procedural requirements to guide them in exercising that discretion, we ought to return at some point to what perhaps is the most important presumption in this area — giving district courts the benefit of the doubt in reviewing their sentencing determinations.

Needless to say, I am enamored with Judge Sutton's work because his emphasis on "trial judges exercis[ing] independent and deliberative judgment about each sentence" echoes the points I have made in my recent article "Conceptualizing Booker" (available here). In that article, I argue that Booker is "best understood not in term of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment."

Lethal injection news and notes

The traditional media and the blogosphere provide these interesting lethal injection items:

The Tennessean, in this editorial entitled "Lethal-injection flaw lingers," complains about the Supreme Court's failure to take up on the merits the basic constitutionality of lethal injection protocols. (The High Court's dodge is discussed here and here.)

The blog StandDown Texas Project notes here that Texas carried out its tenth lethal injection earlier the week and also now has a new execution date for the one defendant who got a temporary stay because of lethal injection protocol concerns (background here and here).

The Death Penalty Information Center has this brief recap of executions in 2006. DPIC rightly notes that we are on a slow pace for the year, though the many lethal injection stays are the principle reason (background here and here).

Paul Butler at blackprof notes here that he recently did an interview for this NPR story which "explores the legal debate behind lethal injection."

The National Law Journal has up this story about the latest litigation development, entitled "Awaiting High Court Review of Lethal Injection, Circuits Are Divided." It seems to be just a slightly updated version of the story recently run by the NLJnoted here.

Two more notable reasonableness wins for prosecutors

As documented in this post tracking reasonableness review outcomes (which I'll be updating soon), prosecutors have done well in post-Booker appellate review of sentences. Thursday brought two more government wins on reasonableness appeals:

The Seventh Circuit in US v. Farris, No. 05-1781 (7th Cir. May 25, 2006) (available here) rejects the defendant's reasonableness complaints concerning his 10-year sentence after he "pleaded guilty to two counts of sending threatening communications through the U.S. mail." The case is notable because the district court did not appear to review the 3553(a) factors with particularity, but the appeals panel still found various ways to declare the within-guidelines sentence reasonable.

The Eighth Circuit in US v. Rogers, No. 05-3184 (8th Cir. May 25, 2006) (available here) continues its pattern of reversing nearly every downward variance it sees. Rogers is interesting because, as detailed here, the Eighth Circuit had previously reversed a sentence of probation based on a large downward departure. This time around, the defendant was given a year in prison for a seemingly minor felon-in-possession crime. But the Eighth Circuit still finds the below-guideline sentence unreasonable:

At the re-sentencing, the district court did not use the factors in § 3553(a) to guide sentencing. Instead, it imposed the lowest sentence it thought might "pass scrutiny" with this court. Rogers argues that at re-sentencing his counsel did review some of the 3553(a) factors. The district court, however, never mentions or acknowledges any of these factors at the re-sentencing. We will not infer a reasoned exercise of discretion from a record that suggests otherwise or is silent.

May 25, 2006

Enron and on and on and on

Unsurprisingly, the mainstream media and the blogosphere is abuzz about the Enron convictions (basics here, early commentary here). Most of the links set forth below involve trial post-mortems; I suspect it will be a few days before folks start to focus on the future sentencing of Ken Lay and Jeff Skilling. But, having now had a chance to talk to a few reporters about the Enron sentencing issues, I am certain that the Lay and Skilling sentencings will be a fascinating (and unique) case-study of the dynamics of the post-Booker world.

Here's just an abridged collection of some blog/MSM coverage of the Enron convictions:

Short people got no prison

With apologies to Randy Newman, this AP story of a state sentencing from Nebraska suggests a sex offender may soon be humming a different version of his Short People song. Here are basics from the AP:

A judge said a 5-foot-1 man convicted of sexually assaulting a child was too small to survive in prison, and gave him 10 years of probation instead. His crimes deserved a long sentence, District Judge Kristine Cecava said, but she worried that Richard W. Thompson, 50, would be especially imperiled by prison dangers. "You are a sex offender, and you did it to a child," she said. But, she said, "That doesn't make you a hunter. You do not fit in that category."

Thompson will be electronically monitored the first four months of his probation, and he was told to never be alone with someone under age 18 or date or live with a woman whose children were under 18. Cecava also ordered Thompson to get rid of his pornography. He faces 30 days of jail each year of his probation unless he follows its conditions closely.

"I want control of you until I know you have integrated change into your life," the judge told Thompson. "I truly hope that my bet on you being OK out in society is not misplaced."

Those who know me personally may understand fully why I might not be too critical of judges who give breaks to vertically challenged defendants. And, as one of my great research assistants asked, the tough question is whether a height-based offender characteristic that results in sentence disparity a form of "warranted" or "unwarranted" disparity.

UPDATE: Mike here at Crime & Federalism and KipEsquire here at A Stitch in Haste have thoughts on this case (which, I fear, will get a lot more attention than is probably deserves).

First-cut Enron sentencing questions (and links)

My mind is already racing with thoughts and questions about the sentencing of former Enron chiefs Ken Lay and Jeff Skilling after their convictions today. (Indeed, I have already created a new category archive for Enron sentencing discussions.) Based on just a few minutes reflection, I already have these questions for collective consideration:

What will be the likely offense level and sentencing range for Lay and Skilling under the federal sentencing guidelines? (By my rough calculation, the guideline sentence could be life or at least 360 to life.)

Will conduct underlying Skilling's acquittal on nine counts be included in the guideline calculation?

Assuming the guideline ranges for Lay and Skilling are very high, will the government ask for a guideline sentence?

Will defense counsel seek a "traditional" departure under the guidelines as well as a variance based on Booker and 3553(a)?

Should I give up my day job and offer myself up to Lay and Skilling as a sentencing consultant?

I could go on and on, but this list gets the sentencing talk started and perhaps will prompt some informed readers to weigh in on some of these issues through the comments. Also, for additional food for thought, here are just a few links to some of my prior white-collar sentencing coverage:

Now Enron prosecution is a sentencing (and Booker) story...

As detailed in this AP report, "[f]ormer Enron Corp. chiefs Kenneth Lay and Jeffrey Skilling were convicted Thursday of conspiracy to commit securities and wire fraud.... Lay was convicted on all six counts against him in the trial with Skilling. Skilling was convicted on 19 of the 28 counts against and acquitted on the remaining nine." This means, of course, attention now should turn to how Lay and Skilling will be sentenced in the post-Booker world.

I am quite pleased that Skilling was acquitted on some charges, because his sentencing should shine a bright spotlight on the realities of sentencing based on "acquitted conduct" within the federal sentencing system. As knowledgeable readers realize, Skilling's acquittal on some charges will become largely irrelevant if and when the prosecutors argue that his guideline sentence reflect even acquitted conduct. This CNN report states that "Lay and Skilling could face 20 to 30 years in prison" and reports that sentencing "was set for the week of Sept. 11."

How Appealing has some links to media coverage here, and I'll update with links to other bloggers later today.

Great commentaries on SCOTUS unanimity honeymoon

Thanks to How Appealing, I see these two interesting commentaries today about the early trend of the Roberts Court favoring narrow unanimous opinions:

Cass Sunstein has this op-ed in the Los Angeles Times entitled"Supreme Court: 9-0 is better than 5-4; Can the chief justice conquer the court's divide by aiming for unanimous rulings instead of swing-voting for the fences?"

Among other good points in these pieces, Lazarus spotlights reasons why "the spate of unanimous rulings [may be] largely ephemeral" during what I will call a SCOTUS unanimity honeymoon in the early days of the Roberts Court. Indeed, as I have noted in posts linked below, the numerous criminal cases still to be over the next month will really test whether we have truly entered a brave new SCOTUS world:

"Death penalty tops list of what Americans find morally acceptable"

The title of this post is the slightly goofy sub-headline from this report about the Gallup Poll's recent Values and Beliefs survey, which seeks to measure "Americans' views of the moral acceptability of 16 issues." Here is a bit more context:

Six of these issues are viewed as morally acceptable by at least 6 in 10 Americans, including the death penalty, which tops the list this year with 71% saying it is morally acceptable. Following behind the death penalty are divorce (67%), buying and wearing fur clothing (62%), medical research using stem cells obtained from human embryos (61%), medical testing on animals (also 61%), and gambling (60%).

For a variety of reasons, I am not sure the Gallup survey is a particularly accurate or effective gauge of the diverse and nuanced opinions that individuals hold concerning the death penalty. Nevertheless, the death penalty finding, especially given other findings in the poll, does confirms my belief that abolitionists who argue for an elimination of the death penalty on moral grounds are quite unlikely to persuade a majority of Americans. Interestingly, as detailed on this page, Gallup surveys reveal that the number of Americans considering the death penalty morally acceptable has increased over the last five years.

May 24, 2006

Another measure of the impact of Apprendi, Blakely and Booker

TaxProf Blog and the ELS Blog are both talking about the most heavily cited court cases inspired by this recent work by Adam Steinman, which concludes with two fascinating charts in an appendix (at pages 143-45) with the 15 most-cited cases by federal courts and tribunals and the 30 most-cited cases by federal and state courts and tribunals. These charts tell lots of interesting tales, but of course I am zeroed in on the sentencing stories.

Not surprisingly, nearly every case in both of the most-cited charts are at least 20 years old and many cases on the top 30 list of combined federal-state cites are criminal procedure classics like Miranda and Terry and Brady. But, tellingly, there is one more recent case cracking the top 30 list of combined federal-state case cites, Apprendi v. New Jersey, even though that decision was a mere five years old when Steinman ran these numbers in June 2005.

In addition, with the help of a few quick Westlaw searches, I think an updated chart of these cite counts might already have both Blakely and Booker cracking the top 30 list of combined federal-state case cites. By these measures, there is now some support for my (over-heated?) claim in this seemingly long-ago Slate piece that Blakely might be "the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

Further follow-up to Ohio Blakely decision

Apparently news travels slowly to some parts of Ohio. Roughly three months after the Ohio Supreme Court applied Blakely to Ohio's structured sentencing system in Foster (basics here, commentary here and here and here), the Mount Vernon News today runs this front-page article headlined "Ohio Supreme Court decision eliminates sentencing guidelines." The paper today also has this companion article with reactions to the Foster decision from two state sentencing judges.

Curious timing aside, these articles provide an effective review of the impact of Foster and the aftermath in lower courts. In addition, both articles have interesting quotes from the director of the Ohio Criminal Sentencing Commission.

SCOTUS anticipation...

After having disposed of only a "flyspeck" Fourth Amendment case this week (details here), the Supreme Court still has more than a dozen significant criminal justice cases to resolve over the next month. As I explained in this post, many remaining cases will test the new Chief's ability to achieve the consensus that has developed as the hallmark of the Roberts' Court to date.

Though for a while I was most excited about the the Recuenco case concerning whether Blakely errors are structural or may be deemed harmless (details in this archive), after arguments I now may be most interested to see what the Court does with the Hill case about challenges to lethal injection protocols (details in this archive).

Of course, there are many other cases that could be big (or little) for the sentencing world depending upon how the Justices frame and resolve the issues before them. I encourage readers to use the comments to note the SCOTUS rulings they are most eagerly anticipating.

Latest FSR issue now on-line

The latest issue of the Federal Sentencing Reporter (Volume 18, No. 3), which is entitled "Taking Stock a Year After Booker" and discussed in this post, is now available on-line through the Caliber service at this link. FSR's publisher has kindly made these two articles from the issue available free on-line:

May 23, 2006

Crack sentencing news and notes

Here are two items of interest for folks continuing to follow post-Booker crack/powder cocaine sentencing stories:

1. The First Circuit Federal Defender Blog has this post that provides a link to this brief from the Federal Defender Office for the Eastern District of Pennsylvania that addresses the crack/powder sentencing in a pending Third Circuit case, US v. Ricks. As detailed in this post, I helped out with an amicus brief filed in Ricks.

2. Speaking of amicus efforts, some blog friends alerted me to the interesting news that the Eighth Circuit recently issued this order soliciting amicus briefing on the crack/powder issue. Here is the text of the order in US v. Spears:

Interested persons are invited to file amicus curiae briefs addressing the question raised in the government's cross-appeal, that is, whether it may be reasonable for a district court, post-Booker, to impose a sentence which utilizes a crack cocaine/powder cocaine ratio of less than 100 to 1. Such amicus briefs may be filed on or before Friday, June 2, 2006, without the need to obtain leave of court to do so pursuant to Fed. R. App. P. 29.

I suppose it would be a bit too cheeky for me to file a letter brief with the Eighth Circuit that simply references the following links to these prior posts and amici efforts in this area:

Great student note about IAC and sentencing length

I often find that student notes in law journals do a terrific job covering important sentencing issues that are not regularly addressed by full-time academics. Another example of this reality comes from this month's Harvard Law Review, which just published a note entitled "Prejudice and Remedies: Establishing a Comprehensive Framework for Ineffective Assistance Length-of-Sentence Claims" (available here).

I thought the nexus of sentencing and ineffective assistance claims was an important issue well before Blakely and Booker came along, and these issues may now be even more important. Though I've not yet read this note closely, I like the insights in this concluding paragraph:

This Note identifies a variety of situations in which convicted defendants might bring ineffective assistance claims challenging the length of their sentences. Given the number of different scenarios and the relatively few Supreme Court cases governing these types of claims, one can expect further development of ineffective assistance length-of-sentence doctrine in the future. Going forward, litigants will have to decide how best to frame their arguments in this developing area of law. Judges, for their part, will have to draw difficult lines between deserving and undeserving claims. One can only hope that both groups, acting in concert, will advance and protect the meaning of the constitutional right to effective counsel.

Substantial discussions of substantial assistance

Two recent rulings from the Fifth and DC Circuits have extended discussions of reductions based on substantial assistance under the federal sentencing guidelines. In US v. Desselle, No. 05-30401 (5th Cir. May 22, 2006) (available here), the government objected to the sizable sentence reduction the defendant received from the district court based on his cooperation, whereas in In re: Sealed Case, No. 04-3015 (D.C. Cir. May 23, 2006) (available here), the defendant complained that did not receive a sufficient reduction for his cooperation.

Regular followers of circuit sentencing jurisprudence will not be surprised to learn that the government prevails in both cases: the Fifth Circuit reverses the district court's decision to grant a sizable reduction for substantial assistance in Desselle, whereas the DC Circuit affirms the district court's decision to grant a spartan reduction for substantial assistance in Sealed Case. Both opinions are interesting reads for anyone dealing with cooperation issues and 5K1.1, though I find Desselle a bit troubling for its failure to integrate post-Booker realities into its analysis.

The district court in Desselle addressed 3553(a) factors at some length to justify the sentence imposed, but the Fifth Circuit panel reverses because of the district court's failure to discuss expressly the factors listed in 5K1.1. Beyond the fact that the provisions of 5k1.1 are now only advisory, it would seem the district court could (and perhaps should and will?) now impose the same sentence upon remand simply by explaining that part of the reduction was due to cooperation and part was due to 3553(a) factors. Put another way, in light of Booker, the Desselle court might have readily decided that any error below was harmless, but instead it gives the government another bite at the harsh sentencing apple.

A window into Alabama sentencing (and politics)

The Birmingham News has this interesting piece with extended quotes following interviews about sentencing issues with the four major candidates for Alabama governor. Tellingly, all the quotes discuss rehabilitation efforts and the need to provide certain non-capital offenders with second chances, and they also all express strong support for capital punishment.

Trust fund kids gone wild in Connecticut?

As I noted here when discussing the latest BJS incarceration data, state-to-state variation in imprisonment always intrigues me. And, when I had a chance today to review the latest BJS stats, I was struck by Connecticut's imprisonment of persons under the age of 18.

Connecticut has a relatively low total prison population and its prison incarceration rate is relatively low compared to the rest of the nation (although its leads the northeast region). But Connecticut had, by far, the largest number of prisoners under the age of 18 as of midyear 2005. Consider, for example, that Texas has nearly 10 times as many total persons imprisoned than Connecticut, but little Connecticut has more than twice as many minors in prison than Texas. In Connecticut, nearly 2% of the entire state prison population as of midyear 2005 was under 18, but minors do not comprise more than 0.5% of all prisoners in any other state.

Do readers have ideas or background on why Connecticut has so many minors in state prison?

Noting the SCOTUS lethal injection dodge

The Supreme Court's decision today not to take on a Tennessee case that directly addresses the constitutionality of lethal injection protocols (basics here) has drawn the attention of a number of media outlets:

I am a bit surprised by the somewhat tepid nature of many quotes in these article. As I have suggested in a series of posts (such as here and here and here), the lethal injection litigation over the last four months has to be considered a national disgrace, and I think SCOTUS deserves much of the blame for the ugliness. But while the Supreme Court apparently has enough time and energy to consider a "odd flyspeck" Fourth Amendment case with only misdemeanor charges hanging in the balance (details here), the Court will not yet spend its precious time on a truly life-and-death Eighth Amendment issue. Hmmm...

Another disturbing facet of Texas justice

Thanks to this tip from Grits for Breakfast, we can hear about another ugly facet of Texas justice from this article discussing the state's parole system. The article, entitled "Parole system shrouds frauds: Poor enforcement of disclosure law hides 'consultants' who rip off inmates, families," is focused mostly on fraud within a secretive parole system. Here are a few notable passages:

The enigmatic process that determines which Texas prison inmates should be set free on parole has long been prone to eruptions of scandal and corruption. Shrouded in secrecy and buffeted by politics, the system is largely ignored by the public until it boils over and brings down a governor or spawns criminal charges.... [A]n Austin American-Statesman analysis shows that state parole officials appear to have little control over the network of attorneys — and hucksters — who ply the secret byways of the parole process trying to affect which murderers, rapists, drug dealers or embezzlers get out of jail early....

The Board of Pardons and Paroles — its seven members appointed by the governor — and 12 parole commissioners hired by the board considered more than 70,000 of the state's 148,000 inmates for parole in fiscal year 2005 and granted parole to 19,582 — just under 28 percent. Under state law, every scrap of paper filed and every record of parole deliberations save for the final vote is secret, so there is no way to know how decisions are made.

Given the enormous flow of cases, board members may spend less than a minute considering each one when they deliberate individually, in offices around the state. So many inmates, or their families, hire consultants, who claim a higher success rate for their clients than inmates navigating the process by themselves. The consultants file briefs or argue before the board.... Parole consulting is a tight-knit business where it is not unusual for officials to switch sides, from making decisions to trying to influence them.

Justice Stevens asking all the right questions

Today the Supreme Court issued only one opinion in Brigham City v. Stuart, No. 05-502 (S. Ct. May 22, 2006) (available here), a little criminal case involving police entering a home without a warrant to break up a fight. And I am pleased to see, from this report by Marty Lederman at SCOTUSblog, that Justice Stevens in a concurrence is asking all the right questions about the expenditure of time and energy in this case:

This is an odd flyspeck of a case. The charges that have been pending against respondents for the past six years are minor offenses — intoxication, contributing to the delinquency of a minor, and disorderly conduct — two of which could have been proved by evidence that was gathered by the responding officers before they entered the home. The maximum punishment for these crimes ranges between 90 days and 6 months in jail. And the Court's unanimous opinion restating well-settled rules of federal law is so clearly persuasive that it is hard to imagine the outcome was ever in doubt.

Under these circumstances, the only difficult question is which of the following is the most peculiar: (1) that the Utah trial judge, the intermediate state appellate court, and the Utah Supreme Court all found a Fourth Amendment violation on these facts; (2) that the prosecution chose to pursue this matter all the way to the United States Supreme Court; or (3) that this Court voted to grant the petition for a writ of certiorari.

UPDATE: Justice Stevens' brief concurrence (available here) is a great read which makes a pitch for the development of state constitutional law. Here's a key quote, follwed by links to posts in which I've championed the development of state constitutional law:

Federal interests are not offended when a single State elects to provide greater protection for its citizens than the Federal Constitution requires. Indeed, I continue to believe that a policy of judicial restraint — one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene — enables this Court to make its most effective contribution to our federal system of government.

SCOTUS denies cert on direct challenge to lethal injection

As noted here at SCOTUSblog, today the Supreme Court decided not to decide a Tennessee case (Abdur'Rahman v. Bredesen, No. 05-1036) that directly addresses the constitutionality of lethal injection protocols. My first reaction is to lament the Court's decision to avoid resolving this critical issue on the merits ASAP. But, upon reflection, I wonder if the denial of cert in Abdur'Rahman is a sign that we will get some substantive discussion of lethal injection protocols through the Court's work on the Hill case.

Coincidentally, the National Law Journal today has this article entitled "Lethal injection stays not consistent in U.S.: Awaiting high court review, courts are divided and attorneys unnerved." Here's a taste:

The situation around the country is unnerving for defense lawyers where stays may be handed out in one circuit but denied in the circuit next door. "The problem is we have no guidance from the court on how to defend our clients," said Kelley Henry, one of [Tennessee death row defendant Sedley] Alley's lawyers. "It is very discouraging when your client's life is on the line."...

[A]ccording to Richard Dieter, executive director of the Death Penalty Information Center in Washington ... the "death penalty is basically grinding to a halt, but that means in the meantime some people are executed and some are not."

The inevitable drug sentencing trade-offs

This interesting article from the Huntington (WV) Herald Dispatch, entitled "Costs a factor in drug enforcement," spotlights some of the trade-offs that are inevitable in the prosecution and sentencing of drug offenses. Here are some snippets:

Tougher punishment for drug dealers is an idea that many — from police to politicians to the public — agree on. But a variety of economic pressures and investigators' need for information often mean lesser charges, shorter sentences and failed attempts to send drug dealers back to the jurisdictions where they are wanted....

The Herald-Dispatch earlier this year reviewed Cabell County court records from 2004 and found that less than 15 percent of the felony drug trafficking cases actually resulted in a year or more in prison. Officials hope that the rising number of arrests this year and better strategies will result in more drug dealers behind bars for longer periods, but it's too early to tell. Most of those cases are still working their way through the system, and there are many challenges — from mounting prison costs to crowded court dockets....

Joe Ciccarelli, the state's supervisory senior resident agent for the FBI, said it is just an unfortunate example of how economics can affect drug enforcement. He said the decision is ultimately up to the voters. "I think it all boils down to economics," he said. "From soup to nuts. Whether you are a drug dealer or a public official trying to find the money to fight the drug dealers. It's all about money.

"It's up to the people of this state to decide where we want our money to go. Do we want to pay more tax dollars to have more judges, more prosecutors, more jails and more policemen? Where is the balancing point? Where does our safety and the safety in our communities come into play? Are we willing to put our money where our mouth is?" Ciccarelli added....

May 21, 2006

US incarceration rate hits another new high

Thanks to this tip from TalkLeft, I see that the Bureau of Justice Statistics has released this report, "Prison and Jail Inmates at Midyear 2005," which documents yet another increase in the overall incarceration rate in the United States. Highlights from the report can be found in this press release, in this preview page, and in this AP article about the report.

As is often the case, the remarkable state-to-state variation in incarceration rates always intrigues me (especially when the federal Justice Department rails about the importance of national sentencing uniformity). Consider, for instance, this factoid:

Louisiana and Georgia led the nation in percentage of their state residents incarcerated (with more than 1 percent of their state residents in prison or jail at midyear 2005). Maine and Minnesota had the lowest rates of incarceration (with 0.3 percent or less of their state residents incarcerated).

A non-lethal weekly recap

As detailed in this post, the most intriguing sentencing action this week flowed from the lethal injection litigation. Nevertheless, as the non-lethal list below documents, there was also plenty of other notable sentencing developments:

Major report on women in prison

As detailed in this AP article, a new report from the Women's Prison Association provides a "comprehensive state-by-state breakdown of the huge increase in incarceration of women over the past 30 years." As the article explains, this new "report concurred with previous analyses attributing much of the nationwide increase in women's imprisonment to the war on drugs."

The WPA's report is entitled "Hard Hit: The Growth in the Imprisonment of Women 1977-2004" and it can be accessed at this link. The Foreword to the report provides an overview and key findings:

Over the past three decades, as the United States has experienced explosive prison growth, women have been hard hit. Although women have the dubious distinction of being the fastest growing segment of the prison population, scant attention has been paid to their involvement in the criminal justice system. Indeed, even most official sources of criminal justice data do not distinguish between men and women in their analyses, leaving it only to speculation on whether there are any distinctions between the two groups that make a difference.

HARD HIT: The Growth in the Imprisonment of Women, 1977 - 2004 is the first study of its kind, analyzing the striking growth in the numbers of women in prison, state-by-state over nearly three decades. The report provides context to the alarming growth trends and reviews what is understood about the phenomena by researchers who study women in the criminal justice system....